Published on:

20 January 2013

Click here for the latest articles on ADA Compliance and Defense.


Hotel Lawyer with some practical advice on what do when the Department of Justice knocks on your door with an ADA “survey”

Actually, the DOJ normally mails you the ADA survey form. But it does come down to the same thing.

By the time you get a DOJ survey, a lot of your flexibility is gone, but it is not too late to protect yourself if you seek experienced counsel immediately.

We are already seeing an increase in public and private enforcement of the ADA. While many are being distracted by pool lifts and other new ADA requirements, private advocacy groups and the DOJ keep banging away on the basics.

Examples? One day this past week, a single ADA plaintiff’s lawyer filed 19 lawsuits in the Los Angeles federal court (Central District of California). And, here is the latest on what is going on with the DOJ enforcement action in New York City with the top-rated Zagat restaurants.


Published on:

14 January 2013

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Hotel ADA Defense & Compliance Lawyer with some tips on what you should do now.

January 31, 2013 is fast approaching and once again our phones are ringing off the hook and the emails are streaming in. Our hospitality clients want to know the latest action being taken by the Department of Justice (“DOJ”) on the Americans with Disabilities Act requirements for pool lifts at pools and spas at hotels, resorts, country clubs, golf and tennis facilities and other places of “public accommodation.”

So here is where things stand.

The pool lift controversy continues to make a splash,
but is it a diversion from enterprise-wide ADA compliance?

The latest update is that the DOJ has not yet further delayed the January 31, 2013 implementation date.

The DOJ stunned both the hospitality industry and pool manufacturers when it proclaimed that only “fixed” or permanent pool lifts would comply with the new 2010 ADAAG Standards (effective March 21, 2012) to the extent “readily achievable.” Portable pool lifts installed on an as needed basis are prohibited unless it is not readily achievable, in which event a portable lift may be used if it is properly anchored.

Due to the efforts of industry groups like American Hotel & Lodging Association and pool and spa organizations, the DOJ postponed the pool lift effective date from March 21, 2012 to January 31, 2013.

The DOJ’s published position is that pool lifts need to be available at each pool and spa (although only one lift is required at a “cluster” of spas) during all pool and spa operating hours. The DOJ has mandated that only “fixed” pool lifts may be installed at each location unless the business can establish that such installation is not “readily achievable.” In such event, a portable pool lift may be permitted if it is properly secured and in place during operating hours.

All indications are that the DOJ remains intransigent that the pool lift requirement will be enforced on January 31, 2013 and pool lifts must be “fixed” to the extent readily achievable. A determination of what is “readily achievable” requires a legal opinion based on the facts of each case.

The ADA pool lift requirement — Situation summary

In September 2012, the DOJ announced it would extend the fixed pool lift requirement to January 31, 2013. Since then, the pool lift controversy has drawn little public attention, until now. Industry groups continue to work with legislators and DOJ officials to provide a greater degree of certainty and “real world” practicality to the pool lift controversy. Those close to the source believe that the DOJ will affirm the implementation date and its position that fixed pool lifts are required where readily achievable. The pool lift train left the station and those in the know believe the DOJ and disabled advocacy groups will enforce the “fixed” pool lift requirement January 31, 2013. We know of several lawsuits filed over the lack of pool lifts after March 21, 2012. We also know of a number of plaintiff’s lawyers who have been waiting for February 1, 2013 to make their splash into pool lift accessibility litigation.


Published on:

30 May 2012

Hotel ADA defense and compliance lawyer: ADA litigation over website accessibility is poised to explode.

How many lawsuits or claims have been filed by private plaintiffs and the Department of Justice (DOJ) against property owners under the Americans with Disabilities Act or ADA?

The latest figures show that more than 15,500 such ADA lawsuits or claims have been filed. And the pace is about to pick up in a big way.

My partner Marty Orlick, who heads JMBM’s ADA compliance and defense team, has defended more than 500 ADA claims all over the country. Marty warns that we may be about to see a tidal wave of Cyber Accessibility claims — lawsuits about reservation systems, hotel websites and related communications facilities.

Why could there be a big slug of these ADA lawsuits over websites? Marty says that there are several reasons:

  1. First, these lawsuits will be very easy for plaintiffs to work up. The plaintiffs do not need any site inspection, experts or research. They can just surf the web from the convenience of their homes or offices. Marty says the “surf by” complaints could dwarf the “drive by” ADA lawsuits that looked for missing accessible parking spaces and other readily visible shortcomings.
  2. Second, some owners and operators have not been paying enough attention to this issue. They have had their attention elsewhere, such as on operating fundamentals, labor costs and ADA pool lift requirements.
  3. Both the DOJ and private plaintiffs have had tremendous success with website accessibility lawsuits under the ADA (see the discussion below and related articles about the Hilton International consent decree and the Charles Schwab class action case), and they are growing impatient for compliance.
  4. In addition, a lack of clear industry standards and misinformed marketing staff have lulled some into thinking they are already in compliance when that is not so.
  5. Finally, some owners and operators have not recognized ADA compliance for the high priority it demands. They have not appreciated how costly ADA litigation and defense can be, and how compliance is so much cheaper than defense.

So here are some timely tips from Marty Orlick, a pro who really understands the ADA compliance and defense. . .


Published on:

29 May 2012

Click here for the latest articles on ADA Compliance and Defense.

Hotel lawyer with latest insights from ADA experts on “ADA Compliance & Claims Prevention.”

At a recent gathering in Los Angeles, a group of ADA experts convened to discuss the hottest issues facing our industry. The panel was moderated by my colleague David Sudeck, who was kind enough to write an article for our readers summarizing some of the matters discussed. The PowerPoint presentation prepared by the panelists is also available by clicking here

There have been more than 15,000 ADA lawsuits filed in the United States. Failure to comply is expensive and bad for business. It is important to be ADA-friendly.

In addition, David Sudeck and Marty Orlick, have written articles and been featured on several webinars, on the topic of Americans With Disabilities Act (ADA), as well as specifically on the new 2010 Regulations which came into effect in part on March 15, 2011 and in part on March 15, 2012 (other than the pool lift regulations, the implementation of which have been delayed, as discussed below). Please feel free to contact either one of them – (David Sudeck) or (Marty Orlick) for additional reference materials or if you would like to discuss your ADA compliance and defense questions.

Here is the summary of the panel discussion . . .


Published on:

22 May 2012

At JMBM’s recent hotel finance conference in Los Angeles, a panel of experts talked about how well joint ventures are working to provide financing for hotel development and acquisitions.

The hotel joint venture experts

The Joint Venture Panel from Meet the Money® 2012 featured 5 veteran hotel investors and operating partners, and was moderated by Guy Maisnik, hotel lawyer and Vice Chair of JMBM’s Global Hospitality Group®. The panelists were:

Picture of Guy Maisnik Guy Maisnik, Vice Chair, JMBM’s Global Hospitality Group® works extensively on hotel joint ventures and financings, as well as acquisitions.

  • Mark Burden, CEO, Rim Hospitality
  • Lamont Meek, SVP and COO, Circa Capital
  • Rick Frank, SVP Hospitality, Behringer Harvard
  • Jonathan Martin, VP, AEW Capital Management
  • Kam Babaoff, Managing Director, Ensemble Hotel Partners

Each of these participants has a long history of investing in and operating hotels, and they represent the spectrum of views currently prevailing in the industry. While each has been successful, each has taken a different road to achieve success. The individual strategies and approaches of each stands out, as does the talent and vision necessary to navigate some of the toughest years in the hotel industry.


Published on:

18 May 2012

Click here for the latest articles on ADA Compliance and Defense.

DOJ extends pool lift deadline

Today, the Department of Justice announced that it is extending the ADA pool lift deadline from May 21, 2012 to January 31, 2013.

Amendment to ADA regulations

This morning, the DOJ formally published an “Amendment of the Americans with Disabilities Act Title II and III Regulations to Extend Compliance Date for Certain Requirements Related to Existing Pools and Spas Provided by State and Local Governments and by Public Accommodations” (ADAAG Sections 242 and 1009 Standards for Accessible Design).

The new pool lift Compliance Date is January 31, 2013. The Amendment acknowledges that the DOJ’s January 31, 2012 technical advisory caused “significant concerns and misunderstandings among a substantial number of pool owners and operators” with respect to the new technical requirements for pool lifts.

Background to the extension

The DOJ recently received and carefully considered comments from pool owners, operators and various industry groups and clarified a number of popular misconceptions about the new requirements. At the end of the day, the DOJ seems to have heard the public outcry, in part.

In its Technical Advisory Document of January 31, 2012, the DOJ sent tsunami-sized waves through the hospitality and pool and spa industries when it announced, for the first time, its interpretation that pool and spa lifts are required to be “fixed” (as opposed to portable) next to the pool or spa at all times the facility is open, unless it is not “readily achievable,” and they cannot be shared between water elements.


Published on:

9 May 2012

Hotel Lawyers in Los Angeles at JMBM’s Meet the Money® 2012

The hotel lawyers at JMBM’S Global Hospitality Group® were out in force and mingling with about 350 hotel industry leaders that joined us in Los Angeles this week for the 22nd annual Meet the Money® 2012 conference.

What is different about Meet the Money®?

There is a lot to like about this conference. We are not in the conference business, and we don’t make a profit on this event, so we run the conference at the highest level of excellence and the way we think best suits business-oriented deal makers. For instance:

  • Substantively, everything has a strong focus on financing, value, and liquidity.
  • It is an efficient (one level) venue where you can see everybody and is not too crowded.
  • You see deal makers, not product electronic key or astro turf vendors.
  • It is a comfortable venue with great food (breakfast, lunch and receptions) and constant snacks (fruit, yogurt, juice, soft drinks, energy bars, and the like).
  • The program starts and ends on time.

What’s different this year from last year?

Well, last year, hotel transactions were coming back online and there was plenty of excitement.

This year, although it seems like just about everyone has a recent deal to discuss and more in the pipeline, things are more sluggish. The experts look for the second half of the year to be much stronger, making a mirror image of 2011.

As usual, there was lots of conversation and plenty of business cards being exchanged in the hallways, and there was a large crowd at the Grand Welcome Reception that talked for hours into the evening (the great food and the poolside venue may have been a factor!).

Quick take aways

If our participants are any indicator of what’s going on in the hotel marketplace, there is a reason for optimism. Here are some of the common conversational and conference themes:


Published on:

07 May 2012

Click here for the latest articles on ADA Compliance and Defense.

Hotel Lawyer ADA defense alert: Charles Schwab settles claim over website accessibility under the Americans with Disabilities Act

On May 2, 2012, Charles Schwab & Co. announced an initiative to make its website more accessible for all customers, particularly those who are blind or have sight disabilities. This high-profile development was part of the settlement of a claim by Kit Lau, a Charles Schwab customer for more than 25 years.

While many have focused on the Americans with Disabilities Act’s (ADA’s) ever-changing pool lift requirements, we continue to see the DOJ and private advocacy groups driving to enforce the original regulations promulgated 20 years ago under the ADA. As of December 31, 2011, more than 13,130 lawsuits had been filed under the ADA, and the trend continues to grow.

Here is what Marty Orlick, the head of our ADA compliance and defense group, and I think the Schwab matter may mean to you.

Charles Schwab settlement is one of 15 prominent web site settlements

Charles Schwab, one of the nation’s leading securities broker-dealers, and a disability rights advocacy attorney, announced last week that they settled a year-long claim by a blind customer that its website was inaccessible to blind, low vision and cognitively challenged customers. The structured negotiations concluded this dispute short of trial.

With this settlement, Charles Schwab joins a list of 15 prominent companies which have settled website accessibility complaints. Charles Schwab agreed that it will make its website more accessible and inclusive for all customers, and agreed to implement the Web Content Accessibility Guidelines (WCAG) Version 2.0 Level AA which will make its website navigable by disabled customers.

An informal complaint backed by the threat of litigation and administrative investigations was lodged with Charles Schwab by the lawyer for a blind day trader. The claimant was a long-time Schwab customer and herself a computer programmer. One morning, she found that she could no longer navigate the Schwab website using JAWS software and was prevented from making trades on-line. The JAWs software reads aloud the text of the page so blind and low vision customers can access the website.

Click here to read a copy of the Charles Schwab Settlement Agreement.


Published on:

27 March 2012

Click here for the latest articles on ADA Compliance and Defense.

Hotel Lawyer ADA defense alert

Significant legislation has been introduced with AH&LA support to provide relief for ADA compliance on pool lifts. So my ADA expert partner, Marty Orlick, and I thought it might be helpful to explain what is going on, and what it likely means to you. Here is what is happening . . .

One year delay for ADA pool lift requirement

On March 26, 2012, the AH&LA announced support for legislation introduced to force a 1 year delay in enforcing the ADA pool lift requirement. The bill was introduced by Congressman Mick Mulvaney (R-SC) and has 26 original co-sponsors.

Authorize portable pool lifts, sharing lifts and protection for hoteliers during delay

In addition to delaying effectiveness of the pool lift requirement that was originally scheduled to be effective March 15, 2012 and then delayed 90 days until May 15, 2012, the proposed legislation would give some other much-sought-after relief.

It would allow the use of portable pool lifts, and allow sharing of lifts among pools. Both of these alternatives were belatedly prohibited by the Department of Justice’s January 31, 2012 interpretation of its final rules, and would be overturned by the legislation if adopted.

Significant relief for the hotel industry

According to AH&LA President/CEO Joe McInerney. “Portable lifts will allow hoteliers to protect guest safety, while accommodating guests with disabilities. The delay will allow hoteliers the time to implement the necessary changes without the fear of lawsuits.”


Published on:

16 March 2012

ADA Defense Lawyer: What does the ADA pool lift compliance extension of May 15 mean for you?

First, let’s be clear that all compliance dates have NOT been extended!

Extended deadline for pool lifts is May 15

Responding to concerns expressed by the hotel, pool and spa manufacturing industries, and those of a number of U.S. Congressmen, on March 15, the White House plunged into the swimming pool access controversy by issuing a 60-day an extension to implement the 2010 ADA Standards for pool lifts. As a result of this action, the new deadline for installing pool lifts is May 21, 2012, but that too may change.

March 15 deadline remains for all other provisions of new ADA Standards

The March 15, 2012 compliance date remains in effect for all other provisions of the 2010 Standards. The Department of Justice will soon publish a Notice of Proposed Rulemaking giving the public 15 days to express their views. We expect the hotel and pool and spa industries will take a much more active role in the public comment process than they did when the 2010 Standards were initially open for comment.

Events have been moving very fast when the official government position changes 180 degrees in less than 24 hours. And that his what has happened. So my ADA expert partner, Marty Orlick, and I thought it might be helpful to explain what is going on, and what it likely means to you.

Here it is . . .


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